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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

What Is Retaliatory Hostile Work Environment Harassment?

Hostile Work Environment

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from retaliating against an employee for engaging in statutorily protected activity under Title VII, which is either opposing an act of discrimination prohibited by Title VII or participating in an investigation under Title VII.  To establish a prima facie case of retaliation under Title VII, an employee must prove:  (1) the employee engaged in statutorily protected activity under Title VII; (2) the employee was subjected to an adverse employment action; and (3) the adverse employment action is causally linked to the statutorily protected activity.   In Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court defined an adverse employment action in the retaliation context as an act that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  In harmony with Supreme Court precedent, courts generally define an adverse employment action as one that materially affects the compensation, terms, conditions, or privileges of the employee’s employment.  In other words, as explained by the U.S. Eighth Circuit Court of Appeals in Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839 (8th Cir. 2002), “[n]ot everything that makes an employee unhappy constitutes an actionable adverse employment action.”    

Generally, an adverse employment action involves a discrete act, such as demotion, failure to promote, reduction in pay, suspension, or termination.  However, co-worker or supervisory retaliatory harassment against an employee for engaging in statutorily protected activity under Title VII may constitute an adverse employment action for purposes of a Title VII retaliation claim.  In Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012), the U.S. Eleventh Circuit Court of Appeals addressed the type of conduct giving rise to a retaliatory hostile work environment harassment claim and set forth the test for proving a retaliatory hostile work environment harassment claim.

Retaliation Case Based On Retaliatory Harassment

In Gowski, Doctors Diane Gowski (Gowski) and Sally Zachariah (Zachariah) asserted claims for retaliatory hostile work environment harassment under Title VII against Bay Pines VA Hospital (Bay Pines).  Gowski and Zachariah alleged that the hospital administration retaliated against them after they filed internal discrimination complaints.  The alleged retaliatory acts against Gowski included changing her duty assignments, taking her off committees, reprimanding her, suspending her, soliciting complaints against her, accusing her of an altercation with another doctor, and charging her $18,000 for an alleged debt incurred eight years earlier.  The alleged retaliatory acts against Zachariah included lowering her proficiency reports, giving her smaller bonuses, suspending her research activities, removing her from the rotation as section chief, reprimanding her, suspending her, and recommending her termination.  Gowski and Zachariah further alleged that the hospital administration targeted them for retaliation by spreading rumors about them, collecting reports about their behavior, and disseminating negative information about them. 

At trial, Bay Pines filed a motion asking the trial court to dismiss the retaliatory hostile work environment harassment claims.  After the trial court denied the motion, the jury returned a verdict finding that Gowski and Zachariah experienced a retaliatory hostile work environment.  On appeal to the Eleventh Circuit, Bay Pines argued that the trial court erred in failing to grant its motion to dismiss the retaliatory hostile work environment harassment claims.   In denying Bay Pines’ motion, the trial court noted that the Eleventh Circuit had not yet recognized a cause of action for retaliatory hostile work environment harassment, but concluded that the Eleventh Circuit would if the issue was presented to them.  Thus, another issue on appeal was whether the Eleventh Circuit recognized a cause of action for retaliatory hostile work environment harassment.

Addressing the threshold legal issue before them, the Eleventh Circuit recognized a cause of action for retaliatory hostile work environment harassment.  After recognizing the cause of action, the appellate court then determined that retaliatory hostile work environment harassment claims would be analyzed under the same framework used by courts for hostile work environment sexual harassment claims.  To establish a hostile work environment under Title VII, the Gowski court explained, a “plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  To be actionable, the appellate court concluded, the retaliatory harassment “must result in both an environment that a reasonable person would find abusive and an environment that the victim subjectively perceives as abusive.”  In evaluating the objective severity of the retaliatory harassment, the Gowski court explained, courts “look at the totality of the circumstances and consider, among other things:  (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening, humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”      

In applying the test for whether the retaliatory harassment was sufficiently severe or pervasive to create a hostile work environment, the Gowski court found that the trial court properly denied Bay Pines’ motion because there was enough evidence for a jury to conclude that the hospital administration “created a workplace filled with intimidation and ridicule that was sufficiently severe and pervasive to alter Gowski’s and Zachariah’s working conditions.”  The appellate court reasoned that the evidence showed the hospital administration created a retaliatory hostile work environment for Gowski and Zachariah by spreading rumors about them, damaging their reputations, disciplining them, maligning them in front of co-worker, instructing other employee to encourage them to resign, limiting their privileges, giving them low proficiency ratings, and removing them from committees and projects.  This evidence, the Eleventh Circuit concluded, was sufficient to support the jury’s verdict on the retaliatory hostile work environment harassment claims. 

Employees Protected From Retaliatory Harassment

Gowski establishes that a hostile work environment can be the basis for a retaliation claim and employees are protected from harassing behavior that punishes them for invoking their rights under Title VII.  Retaliatory conduct that is sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment constitutes an adverse employment action under the anti-retaliation provisions of Title VII.  In evaluating whether a victim of retaliation has presented an actionable claim for retaliatory hostile work environment harassment, courts examine the totality of the circumstances and determine whether the acts of retaliation were sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment and create a hostile work environment.

Consultation With Employment Law Attorney   

We have extensive experience representing employees who have been retaliated against for complaining about discrimination or harassment in the workplace.  If you have been retaliated against, or have questions about retaliatory acts of harassment that you have endured, please contact our office for a free consultation.

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